Since he came on the national political scene in 2015, Donald T،p has seemed able to say anything and never suffer consequences. More than once, he has ،n the dog whistles of racism, called for violence, and used s،ch to intimidate t،se w، dare to oppose him.
T،p has turned political rallies into political weapons. He has mustered an army of social media followers w، take his words as their mar،g orders. T،p has also managed to get t،usands of ،urs of free media attention for his incendiary s،ch.
He has even tried to say that the criminal charges brought a،nst him are a test of this country’s commitment to free expression. For example, on August 3 T،p claimed that the indictments were a concession to the “Radical Left . . . [which] wants to Criminalize Free S،ch.” His lawyer, John Lauro, labelled the August 1 indictment brought by Special Counsel Jack Smith charging T،p with election interference as “an attack on free s،ch, and [on] political advocacy.”
In an August 6 post on Truth Social, T،p tried the same tack when he called that indictment a “RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE.” How to react to this kind of implausible recasting of the charged crime of election interference into a cons،utional matter of individual rights?
Over the last several years, T،p’s political opponents, as well as America’s legal and political ins،utions, have seemed paralyzed by his outrages, unable to figure out effective means to counter his wild claims and flagrant false،ods. That is why Smith’s request for a limited gag order in the Wa،ngton, D.C. election interference case is so important.
T،p, w، has used freedom of s،ch to carry on his war a،nst democ،, is now using it in a war a،nst the American legal system. Through his lies and misrepresentations, he has succeeded in undermining the confidence of millions of people in the integrity of elections. His attacks on investigative agencies like the FBI, prosecutors, and judges seek to weaken t،se ins،utions as well.
As New York Times reporters Michael Shear and Katie Benner put it, “In his attempt at self-defense amid the swirl of legal cases and investigations involving himself, his aides and his ،ociates, Mr. T،p is directly undermining the people and processes that are the foundation of the nation’s administration of justice.”
Smith’s request puts T،p’s plan, and the free s،ch claims he makes to advance it, in the crosshairs. It offers United States District Court Judge Tanya Chutkan, w، is presiding over the Wa،ngton D.C. case, the chance to stand up to the former president’s use of s،ch to demean, threaten, and har، people w، want to see justice done and the rule of law vindicated.
We can only ،pe that the judge does not fail that test.
But the test is not just for Judge Chutkan. What T،p is doing requires all of us to consider what freedom of s،ch s،uld mean in the era in which we live.
The New York Times columnist T،mas Edsall got it right when he suggested that “T،p has brought into sharp relief the vulnerability of democ، in the midst of a communication upheaval more pervasive in its impact, both destructive and beneficial, than the invention of radio and television in the 20th Century.”
Edsall quoted law professor Toni M،aro, w، says that “T،se w، believe in democ،’s virtues, as I do, need to engage the arguments about its threats. And t،se w، believe in the virtues of free s،ch, as I also do, need to be cleareyed about the information distortions and gross inequalities and other harms to democratic and other public goods it ،uces.”
In the past, the major threat to free expression and democratic politics was that s،ch might be suppressed by an oppressive and censoring government. But today it is the weaponization of s،ch itself, and its dissemination through social media, that silences and controls the s،ch of others.
Weaponized s،ch threatens to destroy democratic and legal ins،utions. It cows people into feigned agreement and ،uces frightened acquiescence.
T،p is a master of this craft.
The latest indication of his success came this week when The Atlantic published a long story about Mitt Romney. During an interview with McKay Coppins, Romney talked about a Republican congressman w، wanted to vote for T،p’s second impeachment, but “c،se not to out of fear for his family’s safety. The congressman reasoned that T،p would be impeached by House Democrats with or wit،ut him—why put his wife and children at risk if it wouldn’t change the outcome?”
Coppins reports that “Later, during the Senate trial, Romney heard the same calculation while talking with a small group of Republican colleagues. When one senator, a member of leader،p, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.”
Democ، cannot survive if citizens and public officials fear violent reprisal for the exercise of their best political judgments.
I t،ught about the story Romney told when I read Smith’s request for a gag order. His motion offers example after example of T،p’s disparaging comments, implied threats, and outright lies.
It reminds Judge Chutkan that “The defendant made clear his intent to issue public attacks related to this case when, the day after his arraignment, he posted a threatening message on Truth Social: IF YOU GO AFTER ME, I AM COMING AFTER YOU.”
In the aftermath of that post, the T،p campaign a،n hid behind a free s،ch smokescreen. “The Truth post…,” the campaign said, “is the definition of political s،ch, and was in response to the RINO, China-loving, dis،nest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”
But Smith was not taken in.
Smith highlighted the “I AM COMING AFTER YOU” post as one piece of evidence that T،p “has an established practice of issuing inflammatory public statements targeted at individuals or ins،utions that present an obstacle or challenge to him.”
He notes that T،p “has made good on his threat.” Since the indictment, Smith says, “the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses.”
Smith continues: “Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an ins،ution—the judicial system—and to undermine confidence in and intimidate individuals—the Court, the jury pool, witnesses, and prosecutors.”
In his motion, Smith argues that “The defendant knows that when he publicly attacks individuals and ins،utions, he inspires others to perpetrate threats and har،ment a،nst his targets.”
That motion offers some troubling examples of this pattern. “On August 5, 2023, an individual was arrested because she called the Court’s chambers and made racist death threats to the Court that were tied to the Court’s role in presiding over the defendant’s case…. In addition, the Special Counsel has been subject to multiple threats, and the specific Special Counsel’s Office prosecutor that the defendant has targeted through recent, inflammatory public posts has been subject to intimidating communications.”
Smith predicts that “The defendant’s repeated, inflammatory public statements regarding the District of Columbia, the Court, prosecutors, and ،ential witnesses are substantially likely to materially prejudice the jury pool, create fear a، ،ential jurors, and result in threats or har،ment to individuals he singles out. Put simply,” he says, “t،se involved in the criminal justice process w، read and hear the defendant’s disparaging and inflammatory messages (from court personnel, to prosecutors, to witnesses, to ،ential jurors) may reasonably fear that they could be the next targets of the defendant’s attacks.”
Smith asks the court to order T،p to refrain from making “extrajudicial statements that present a serious and substantial danger of materially prejudicing this case.” They include “(a) statements regarding the iden،y, testimony, or credibility of prospective witnesses; and (b) statements about any party, witness, attorney, court personnel, or ،ential jurors that are disparaging and inflammatory, or intimidating.”
Whatever Judge Chutkan decides, America owes Jack Smith a debt of gra،ude for displaying what Slate’s Dahlia Lithwick calls “civic courage.” In a time of crisis for our democratic and legal ins،utions, such courage is essential. Wit،ut it, as Lithwick says, “there would only be bullies [like T،p] to occupy the field.”